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Issues 8





Shariah Compliance

Fakihah Azahari, in her paper “Shariah Audit in a Legal Process: Future Growth in Specialised Skills”[2013] 6 MLJ xciii, interestingly open the discussions on the subject. In her paper, she widely opens the possibilities that there are many areas of Shariah compliance in business environment remained untapped.

Since the introduction of the Shariah Governance Framework on January 1, 2011, a framework or guidelines on best practices on Shariah Audit, lack of insufficient materials or data for reference pose big hurdles to conduct audits precisely in relation to Shariah compliance.

Like any other business transactions, their legality is scrutinised not only at the end of the transactions but at every stage of its formation. Any lack of Shariah compliance at any stage of its formation may render the document to be not in conformity with Shariah provisions which in effect pose legal risk to the transaction.To make it more complicated, besides complying on Shariah basis, the product or its transactions should also be in conformity to existing civil laws.

As such, with the introduction of the guidelines, there will be requirement for specialised skills and talents to monitor that at every stage of any transaction complies with Shariah provisions. As for legal practitioners in transaction involving Shariah compliance, the new guidelines suggest that their duty do not merely witnessing the transaction but also to ensure that the transaction is in effect complying with Shariah basis.

However, even though we have adopted the Islamic Banking since 1983, compliance issues are still big legal battle due to weaknesses in the drafting of Islamic Banking documents. Perhaps with the guidelines, drafting of Islamic documents could be developed further and differently from the present reliance of conventional framework which incorporate major components of the conventional structures and terms.
Studies on Islamic compliance is ongoing and never ending. With the present circumstances in Shariah compliance documentations which are still largely under the shadow of conventional documentations, there are real WIDE OPPORTUNITIES and vast prospects for developing new and skilled talents to tackle this problem.

Drafting of Islamic compliance documentations which truly reflect the meaning and spirit of Islamic transactions and to negate legal risk on its validity and at the same time not in collisions with Civil Law is a big challenge which have not been exhausted.

Legal practitioners with an expertise in Islamic Banking for example are still in dire demand. On the other hand, private legal practitioners have much hurdle to convince institutions to make changes to their standard documents unless endorsed by their in house legal advisors.

In KIQ, we have been consulted on various business documentations relating to Shariah compliance with our own Islamic Banking expert as well as Syarie Lawyer with vast experiences in matrimonial and inheritance matters.